Basscom Enterprises Limited and 3 Ors v Bharti Airtel Zambia Holdings BVand 2 Ors (APPEAL NO. 219/2021) [2025] ZMCA 86 (30 June 2025)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 219/2021 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BASSCOM ENTERPRISES LIMITED GILLIAN CASSILI DIEGO CASSILI RICHARD ANTHONY HADLEY 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT AND BHARTI AIRTEL ZAMBIA HOLDINGS BV AIRTEL NETWORKS ZAMBIA PLC SECURITIES AND EXCHANGE COMMISSION 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: Kondol,o, SC, Ngulube and Banda~Bobo, JJA On 16th February, 2022 and 30th June, 2025 For the Appellants: Mr. J. Madaika of Messrs J and M Advocates For the 1st and 2 nd Respondents: Mr. M Chiteba and Mr. M Chilufya For the 3 rd Respondent: Mr. K. N. Sakala, In-house Counsel. of Messrs Michael Mundashi Legal Practitioners JUDGMENT Banda-Bobo JA, delivered the Judgment of the Court. Cases Referred to: 1. 2. 3. 4, 5, 6. 7. 8. 9. King Farm Products Limited and another v. Dipti Ran Sen (Executrix and Administratrix of the estate of Barab Sen) (2008) ZR 72 Vol 2 SC ZCCM Limited V. Kangwa and Others SCZ Judgment No. 25 of 2000 Communications Authority v. Vodacom Zambia Limited (SCZ Judgment No. 21 of 2009), Nkhala and Others v. The Attorney General (1966) 142 Khalid Mohamed v. The Attorney General (1982) ZR 49 SC Steak Ranches International BV v. Steak Ranches Limited Appeal No. 219 of 2012 Galaunia Farms Limited v. National Milling Company Limited (2002) ZR Lumus Agricultural Company Limited and Others v. Gwembe Valley Development Company Limited (in receivership) ( 1999) ZR 1 Rainbow Tourism Group Zambia Limited v. Savoy Hotel Limited SCZ Judgment No. 13 of 2017 10. Salomon v. Salomon and Company Limited (1895 - 99) All ER 33 11. Madison Investments Property and Advisory Company Limited v. Peter Kanyinji SCZ Appeal No. 10/2016 12. Ben Hashem v. Ali Shayif (2008) EWHC 238 13. Ebbau Vale Urban District Council v. South Water Traffic Licencing Authority (1951) 2 KB 366 14. Adams v. Cape Industries Plc (1999) 1 ALL ER 929 15. 16, Swallow Freight Services (Zambia) Limited v. Kapili Transport Company Limited SCZ Appeal No. 81 of 2006 EMC Truck Centre Zambia Limited and Another v. Access Bank (Zambia) Limited 17. Mususu Kalenga Building Limited and Others v. Richman's Money Lenders Enterprises (1999) ZR 27 18, Arthur Nelson Ndhlovu and Others v. Alshams Building Material Company Limited & Another SCZ Judgment No. 12 19. Garton v. Hunter (1969) 1 All ER 451 at 453 21. Champ Health Solutions v. Mopani Copper Mines Plc and Another Appeal No. 89 of 2015. J2 Legislation referred to:- 1. Authentication of Documents Act, Chapter 75 of the Laws of Zambia The delay in rendering this Judgment is deeply regretted. It is due to circumstances beyond the Court's control. 1. 0. Introduction 1.1 This is an appeal against a Ruling by Mweenda J, in which she found merit in a preliminary issue raised by the 1st and 2 nd Respondents and 1n essence dismissed the Appellants application for leave to issue and serve a subpoena duces tecum. 2. 0. Background 2.1 In June 2010, the 1st Respondent acquired about 78.89% shares in the 2 nd Respondent, a company listed with the 3 rd Respondent. Three months later, the 1st Respondent made a mandatory offer to the minority shareholders to acquire the 21.11 % minority shares of the 2 nd Respondent at a price of K710.00 per share. 2.2 The Appellants happened to be part of the minority shareholders who were aggrieved by this decision. Their grievance was that the decision to mandatorily acquire the J3 21.11 % shares at K710.00 was made without providing them with the value at which the 1st Respondent acquired 78.89% shares in the 2nd Respondent. The Appellants sought an order that the 1st and 2nd Respondents disclose this information, and further that the market value of the minority shares be determined so that the difference between K710.00 and the market value be paid to them. 2.3 However, before the trial commenced, Mwenda J was faced with an application by the Appellants to issue and serve a subpoena duces tecum on the 1st and 2nd Respondents to produce the full Share Sale Agreement (SSA) including schedules 1 to 14 between Zain International BV and Bharti Airtel Zambia Limited. The Appellants contended that it would be difficult for the court to proceed to trial in the absence of that document as the SSA was essential for the determination of the price of shares. 2.4 This application prompted the 1st and 2nd Respondents to issue summons for an order to state questions of law in the form of a special case and as preliminary issues. The questions of law were the following: J4 i. Whether the Share Sale Agreement sought to be produced was authenticated for use in Zambia; ii. If the Share Sale Agreement was not authenticated, then whether it can be used before the Courts in Zambia; and iii. Whether tile application for leave to issue and serve a Subpoena Duces Tecum is legally tenable. 2.5 The 1st and 2nd Respondents alleged that there was no SSA between Zain International BV and Bharti Airtel Zambia Limited. 2.6 That the agreement was between Bharti International (Netherlands) BV, who entered into a SSA with Zain · International BV, a company incorporated in the Netherlands, Mobile Telecommunications Company KSC, a company incorporated in Kuwait, and Bharti Airtel Limited, a company incorporated in India in relation to the acquisition of 100% shares in Zain Africa BV. 2.7 In opposition, the Appellants contended that the SSA related to the purchase and sale of the whole of the issued share capital of Zain Africa BV, which essentially included the share capital of the 1st Respondent company. That only part of the agreement JS was delivered to them and a complete one is pertinent for the court to consider the true issues in controversy between the parties. It was contended that the Respondent was hiding behind the veil of authentication to prevent the ends of justice to prevail. 2.8 High Court's Decision 2.9 After carefully considering the application and the exhibited excerpts of the SSA, Mwenda J held that neither the 1st nor the 2 nd Respondents were party to the said agreement. 2.10 She further stated that the Appellants themselves had failed to show a link that the 1st and 2nd Respondents, or that they themselves were parties to the agreement. 2.11 She said that it appeared to her that the Appellants sought to rely on the agreement as evidence for their assertion that despite the 1st and 2nd Respondents not being a party to the agreement, the SSA related to the issued share capital of Zain Africa BV which in turn related to the 1st Respondent. She held that the 1st and 2 nd Respondents were not privy to the SSA and could not be compelled to produce a document they were not parties to. J6 3.0. Grounds of Appeal 3.1 Dissatisfied with the d ecision of Mween da J, the Appella nts h ave raised three grou n ds of appeal before us. They are a s follows: 1. The learned trial Judge erred in law and in fact when she held that the Share Sale Agreement is a foreign document when its purpose and effect was to purchase shares held in a company incorporated in Zambia and listed on the Lusaka Stock Exchange. 2 . The learned trial judge erred in law and in fact when she failed to address her mind to the fact that ·the Share Sale Agreement was submitted to the 3 rd defendant as part of the legal documentation to justify the mandatory buyout to the minority shareholders. The document thereby became part of the documentation that was considered and applied in the mandatory buyout offer and in that regard became a document being used in Zambia as it was part of the transaction concluded in Zambia. J7 3. The learned trial judge erred in law and in fact when she applied the provisions of the Authentication of Documents Act, Chapter 75 of the Laws of Zambia 1 to a document that she has not seen and had no opportunity of reading as it was not on the court record and neither had it been produced in full in any affidavit on record. 4.0. The Appellants Heads of Argument 4.1 The Appellants' account is that they applied to subpoena the 1st and 2nd Respondent after a failed attempt to get the 1st and 2nd Respondents to avail them a copy of the complete SSA. 4.2 That the record showed an undertaking by counsel for the 1st and 2 nd Respondents at the time, Mr. Michael Musonda SC, now Supreme Court Judge [Deputy Chief Justice), to avail them the agreement. That a copy was consequently delivered to the Appellant, but it was incomplete and did not tally with the copy produced in the 3rd Respondent's bundle of documents. 4.3 It was submitted that the two copies had many dissimilarities, and both had significant portions missing. It is the Appellant's J8 view that the lower court ought to have the true, unabridged agreement to make an informed decision based on the full and correct facts of the case. 4.4 Ground 1 4.5 ln ground one, it is argued that the court below erred by holding that the SSA is a foreign document when the ultimate effect of the document was the acquisition of the shares in a company duly incorporated in Zambia and listed on the Lusaka Stock Exchange. 4.6 It is submitted that the SSA relates to a public company, which had members of the Zambian public as its shareholders. That therefore, documents relating to the sale of the said shares which resulted in a mandatory buy out of the Zambian shareholders cannot be termed as a foreign document. 4. 7 It was argued further that, it is not disputed that the acquisition of minority shares by mandatory offer, was approved by the 3 rd Respondent at a price that has never been justified or explained to the minority shareholders. That the document in contention was utilised in Zambia for statutory compliance purposes by the 3 rd Respondent as the statutory regulator. That it is for this Jg reason that the Appellants claim that the shares were undervalued as critical information was not disclosed. 4.8 Counsel for the Appellants has referred us to a ruling ofMutuna J, as he then was, on an application for consolidation of this 111atter and another in which Lusaka Stock Exchange sued ZRin International BV, Bharti Airtel International (Netherlands) BV, Bharti Airtel Africa BV, Bharti Airtel Zambia Holding BV. The learned judge held that: "the facts as they are revealed by the Statement of Claim are that on or about 8 th June, 2010 Bharti Airtel International (Netherlands) BV, through its wholly owned Africa subsidiary Bharti Airtel Africa BV, concluded the acquisition of 100% of the issued share capital and voting rights in Zain International BV. This was from Mobile Telecommunications Company KSC, a company listed on the Kuwait Stock Exchange, and pursuant to a share sale agreement dated 30th March 2010. As a result of this, Bharti Airtel Africa BV became a wholly owned subsidiary of Bharti Airtel International (Netherlands) BV which JlO holds 100% shareholding in Bharti Airtel Zambia Holding BV. The said Bharti Airtel Zambia Holding held 78.89% listed shares in Celtel Zambia PLC and as such the transaction resulted in Bharti Airtel International (Netherlands) BV acquiring and becoming the beneficial owner of the 78.89% shares and voting rights in Celtel Zambia Pie." 4. 9 The Appellants explain that the 2 nd Respondent, formerly known as Celtel Zambia Limited traded as Zain Zambia, a subsidiary of Zain Africa BV. That Zain Africa BV was 100% owned by Zain International BV which is a wholly owned subsidiary of Mobile Telecommunications Company KSC, a company listed on the Kuwait Stock Exchange. By an agreement of 30th March, 2010, Bharti Airtel International (Netherlands) BV and Bharti Airtel Limited acquired the shareholding of Zain Africa BV which had a 78.89% shareholding in Celtel Zambia. The remaining 21.11 % was held by a number of institutional investors and retail investors such as the Appellants. That the acquisition of Celtel Holding Jll Company warranted the change of name from Zain Group to Bharti Group, thus the name Airtel Networks Zambia Plc. 4.10 It is the Appellants' argument that a company is classed as a wholly owned subsidiary of another when its shares are exclusive1y owned lJy lhe holding company or the subsidiaries of the holding company. That, that being the case, even if the 1st Respondent is a separate legal entity, it is financially, commercially and economically answerable to and controlled by Bharti International (Netherlands) BV. That the 1st Respondent came to hold its shares in Airtel Zambia through the SSA. It is argued that regardless of where it was executed, the document related to assets located within Zambia. That it was therefore improper and erroneous for the court below to hold that none of the parties in this suit were a party to the agreement. 4.11 Reference is made to the cases of King Farm products Limited and another v. Dipti Ran Sen (Executrix and Administratrix of the estate of Barab Sen) 1 and ZCCM Limited V. Kangwa and Others2 in which the Supreme Court highlighted instances when companies can be treated as one economic entity even though they are separate legal entities. J12 4.12 It is the Appellants' submission that the 1st Respondent was a party and directly connected to the SSA. That Celtel Zambia PLC was a public limited company listed on the Lusaka Stock Exchange and its books and affairs open for public scrutiny. To Lhi8 end, the 3 1 tl Respondent requested for the full agreement by letter dated 6 th April, 2010. That the 1st Respondent undertook to produce the full document but only excerpts were on the record. It was therefore necessary for the court to call for and examine the full document so as to make an informed decision whether the document was a foreign one. It is argued th~t this is a proper case for this court to reverse the lower court's decision as it was made devoid of evidence as per the cases of Communications Authority v. Vodacom Zambia Limited3 , Nkhata and Others v. The Attorney General4 and Khalid Mohamed v. The Attorney General5 • 4.13 The gist of the Appellants argument in ground two is that the 3r d Respondent, after a request, were availed the document. That an incomplete copy of the SSA sits on the record of appeal. That this is evidence that the agreement was relied upon by the Jl3 parties, including the Respondents, and was used in Zambia for compliance purposes, therefore making it a local document. 4.14 Regarding the Authentication of Documents Act Chapter 75 of the Laws of Zambia 1, it is argued in accordance with the case of Steak Ranches International BV v. Steak Ranches Limited6 , that the Act is aimed at protecting citizens from unscrupulous individuals but nevertheless, the parties should not run away from their own document by arguing authentication or lack thereof. It is the Appellants' argument that the Respondents are estopped from denying their own document. The case of Galaunia Farms Limited v. National Milling Company Limited7 is relied upon, where the basis of estoppel was explained in that case thus: "the basis of estoppel is when a man has so conducted himself that it would be unfair or unjust to allow him to depart from a particular set of affairs another has taken to be settled or correct." 4 .15 The Court's attention was drawn to the notarized copy of the SSA which was availed to the 3 rd Respondent. It is argued that the document was duly authenticated as an authorised copy J14 and was used for undertaking the buyout. It is also submitted under this ground that the court did not pay full attention to the evidence and record before it. 4.16 Under ground three, it is submitted that the learned trial Judge ditl nut have lhe opportunity of reading the SSA in its entirety. That she erred when she applied the Authentication of Documents Act, Chapter 75 of the Laws of Zambia 1. Counsel for the Appellants contends that in the court below, the Respondents only exhibited the cover page, page 2 and page 50 of the SSA upon which the learned Judge made her decision. That the court should have considered the copy produced by the 3 rd Respondent and should have requested for the complete document in order to view its contents which is the crux of this matter. It is argued that this is against the best evidence rule. 5.0 The Respondents' Heads of Argument in Opposition 5.1 In response to the Appellants' arguments, it is submitted 1n ground one that the Appellants' argument is a clear travesty of the law governing the authentication of documents and the doctrine of privity of contract. It is argued that according to the Authentication of Documents Act1 in Section 3, documents Jl5 executed outside Zambia are deemed to be valid for use in Zambia if they are authenticated. The case of Lumus Agricultural Company Limited and Others v. Gwembe Valley Development Company Limited (in receivership) 8 is relied upon where the Supreme Court held that: "it is quite clear from Section 3 that if a document executed outside Zambia is authenticated as provided, then it shall be deemed or presumed to be valid for use in this country and if it is not authenticated then the converse is true that it is not to be valid and cannot be used in the country." 5.2 The case of Steak Ranches International BV v. Steak Ranches Limited6 is also cited where the Supreme Court explained the protective objective of the Authentication of Documents Act; that it was to protect citizens from unscrupulous businessmen or international crooks from obtaining unauthenticated documents and use them in this country. 5.3 Our attention was also drawn to the case of Rainbow Tourism Group Zambia Limited v. Savoy Hotel Limited 9 in which the Jl6 Supreme Court held that parties to unauthenticated documents are bound by their documents. That they cannot hide under the guise of authentication as provided for by the Act. It was argued that the SSA was entered into to acquire the whole share capital of Zain Africa BV and lhe parties were Zain International RV, Bharti Airtel International {Netherlands) BV, Mobile Telecommunications Company KSC and Bharti Airtel Limited. It is contended that the 1st and 2 nd Respondents in this matter are not party to this agreement and as a result, are not privy to the unauthenticated document even on the basis of a single economic unit of a group of companies. 5.4 The Respondents argue that a company 1s a legal entity, separate and distinct from its shareholders and directors. It is also submitted that the courts would, 1n warranted circumstances, look beyond the veil of incorporation to deduce the shareholders. The cases of Salomon v. Salomon and Company Limited10 , Madison Investments Property and Advisory Company Limited v. Peter Kanyinji SCZ11, Ben Hashem v. Ali Shayi( 12 , Ebbau Vale Urban District Council v. South Water Traffic Licencing Authority13 , Adams v. Cape Jl7 Industries Plc 14 and Swallow Freight Services (Zambia) Limited v. Kapili Transport Company Limited SCZ15 were cited in support. 5.5 It is argued that there is no material evidence suggesting that Zain International BV, Zain Africa BV and Celtel Zambia Plc were operating as a single economic unit in terms of control, domination or improper purpose or use which would warrant the court to pierce the veil of corporation. That there is equally no evidence to show that Bharti Airtel International BV, Bharti Airtel Limited and Bharti Airtel Holding and the 2nd Respondent operate as a single economic unit. It was submitted that companies in a group of companies are separate, and the rights and obligations of a subsidiary cannot be said to be those of the parent company. The 1st and 2 nd Respondents emphasize that they are not privy to the agreement and cannot claim any benefit arising from it. 5.6 Regarding the Appellant's argument that the trial court did not have all the relevant evidence before her to dete rmine the matter as she did, it is the Respondents' counter argument that the court had all the necessary information before it when it was J18 determining the special case of questions of law before her. That the Judge was being called upon to ascertain whether the SSA was authenticated and she determined that question in the negative. 5. 7 In ground two, it i::; submitted that the fa.ct that the SSA was used for statutory compliance purposes in Zambia by tendering it to the 3rd Respondent does not make it a local document nor a waiver of the requirements under the Authentication of Documents Act 1 . It is argued under this ground that the issue that an authenticated copy lay on the record was not raised in the court below and cannot be raised for the first time on appeal. See the cases of EMC Truck Centre Zambia Limited and Another v. Access Bank (Zambia) Limited16 and Mususu Kalenga Building Limited and Others v. Richman's Money Lenders Enterprises17 , which cases discuss the well-known principle that it is not competent to raise an issue in the appellate court that was not raised in the court below. 5.8 In the alternative it is argued that the copy referred to, was notarised by a public notary, Pieter Heyme Bolland, in Armsterdam Netherlands, still fell short of the requirement of J19 the Authentication of Documents Act in section 3(d)(i) and (ii). It is submitted that the trial court cannot be faulted for holding as it did. 5.9 In response to the argument based on the principle of estoppe1, that the 1;,;L and 2 nd Respondenls having relied on the SSA in Zambia should not be allowed to object to its production as they are estopped from denying their own document, it is the Respondents argument that there can be no estoppel against a statute. The case of Arthur Nelson Ndhlovu and Others v. Alshams Building Material Company Limited & Another SCZ Judgment No. 12 18 is prayed in aid. It is stated that the doctrine of estoppel may not be invoked to render valid a transaction which the legislature has on grounds of general public policy enacted to be invalid. It is submitted that it is immaterial that excerpts of the SSA were availed to the 3 rd Respondent as the document remains foreign and remains unauthenticated. 5.10 Under ground three, the Respondents' contention is that the trial Judge addressed her mind to the issue of the incomplete SSA when she stated that: J20 "The production of the excerpt of the agreement by the 1 st and 2 nd defendant was done for the purpose of demonstrating that they are not party to the said contract, rather than touch on the salient contents therein. It is trite that only the parties to a contract are bound by and can enforce its provisions ... " "Similarly, for purposes of producing contracts as documentary evidence, it follows that the proper party to produce and rely on the content of a particular contract, in an effort to claim a particular right, would be the party with privity to the same ... " 5.11 Regarding the allegation that the court below breached the best evidence rule by denying itself an opportunity to view the best evidence, it is submitted based on the case of Garton v. Hunter19 that the best evidence rule requires that a party must endeavour to produce the best evidence that the circumstances of the case allow. That if an original document is available, then it must be produced. It is submitted that the best evidence that the 1st and 2nd Respondents could have produced before the trial court are the excerpts of the SSA to show that they were not parties to the unauthenticated document. 5.12 It is prayed that the appeal be dismissed as the Appellants' arguments are unfounded and lack merit. J21 6.0 Hearing 6.1 At the hearing Mr. Madaika relied on the record of appeal and heads of arguments filed into court. He stated that their arguments comprehensively addressed the three grounds of appeal. In uugmcnting his subrnissions, he ~Laled that the agreement is central to this case. He referred us to the notorised SSA on record. Mr. Madaika submitted that a complete document was never provided. That the lower court was of the view that the agreement could not be used in courts as it was a foreign document. That there existed a notorised document, which has not been availed to the parties nor the court. Mr. Madaika added that the figures in the document will inform the Appellant of the value of the shares. He prayed that the ruling of the lower court be set aside and the matter be sent back to the High Court. 6.2 Mr. Chiteba, counsel for the 1st and 2 nd Respondents equally relied on the filed heads of argument. He referred us to a press release on the mandatory offer by the 3r d Respondent. He stated that therein was direction on how the price for the shares was J22 arrived at. He reiterated his argument that there was no SSA entered into with the 1st and 2 nd Respondents. Mr. Chiteba also reiterated that the notorised copy on the record is not compliant with the Authentication of Documents Act 1 • He added that the cuurt bduw was on firm ground when it ruled as it did. 7.0 Analysis and Consideration by the Court 7.1 We have considered the record of appeal before us, the grounds of appeal as well as the parties' heads of argument. As can already be ascertained, in the court below, the Appellant made an application to issue and serve a subpoena duces tecu.m against the 1st and 2 nd Respondents to produce the full SSA. The record contains two incomplete copies of the SSA. The 1st and 2 nd Respondents did not oppose this application but instead, issued summons for an order to state questions of law in the form of a special case and as a preliminary issue. The Judge addressed the 1st and 2 nd Respondent's application first. The findings of the court below in that application determined both applications. The questions that were raised by the 1st and 2nd Respondents in the court below have been reproduced at J23 paragraph 2.4, page JS herein. We intend to consider all the three grounds together as they are inter-related. 7 .2 In resolving this appeal, we find it expedient to examine the law in Zr.1mhia regarding authentication of documents. Section 3(d) (i) and (ii) of the Authenticalion of Documents Act1 is couched in the following terms: 3. Any document executed outside Zambia shall be deemed to be sufficiently authenticated for the purpose of use in Zambia if- (a) .. . (b) .. . (c) .. . (d) in the case of a document executed in any place outside Her Britannic Majesty's dominions (hereinafter referred to as a "foreign place") it be duly authenticated by the signature and seal of office- (i) of a British Consul-General, Consul or Vice Consul in such foreign place; or (ii) of any Secretary of State, Under-Secretary of State, Governor, Colonial Secretary, or of any other person in such foreign place who J24 shall be shown by the certificate of a Consul or Vice-Consul of such foreign place in Zambia to be duly authorised under the law of such foreign place to authenticate such document". 7.3 Thi::; provision has been the su~iect of judicial interpretation of the law on authentication of documents in Zambia. Of particular interest to the present case is the case of Lumus Agriculture Services Company Limited and Another v. Gwembe Valley Development Company Limited (in receivership)8 • In that case, the Supreme Court was dealing with the question whether authentication has a retrospective effect. The Appellant in that case, had challenged the appointment of joint receivers and managers on the ground that the notice appointing them, having been executed in Germany, did not comply with the above produced section of the Authentication of Documents Act. The notice was later sent to Germany for authentication. Interpreting Section 3, the Supreme Court held that: "It is clear from Section 3 that if a document executed outside Zambia is authenticated as provided then it shall be J25 deemed or presumed to be valid for use in this country and if it is not authenticated, then the converse is true, that it is deemed not valid and cannot be used in this country." 7 .4 Counsel for the Respondent had argued in that case that if a document is not authenticalec.l, il is still vaHd 8nn r.an be used for other purposes other than evidence. In response to this argument, the Supreme Court made it clear that: "an instrument which is not authenticated or registered is valid between the parties but ineffective against other persons and that is precisely the position in this case". The Court went to further hold that if a document 1s not authenticated, it cannot be used in this country for any purpose at all. (Underlined for emphasis) 7 .5 The SSA is a document in accordance with Section 2 of the Act. It was executed in the Netherlands and in fact notarized in that jurisdiction. A notarized copy appears on the record of appeal. It is this copy that was used for statutory compliance with the 3rd Respondent. It is not in dispute that it was not authenticated in accordance with the Act. J26 7 .6 The consequences of non-authentication are clear as underlined above. The SSA use in Zambia is invalid. In its state, it could not be used for any purpose in Zambia. The Respondents are indeed not party to that agreement and neither arc the Appellants. The Appellants are third parties, whose rights were altered as a result of this unauthenticated agreement. In view of the Lumus case, the agreement is ineffective against them. This agreement was also ineffective as regards statutory compliance, and for the purpose of acquiring shares in a Zambian company here in Zambia, that was not party to the agreement. 7.7 We agree with the arguments by the Respondent that the SSA does not become a local document by virtue of its use in Zambia. It remains a foreign document and in its unauthenticated state, could not be used for any purpose at all here in Zambia, not for the acquisition of any company, let alone minority shareholding. The SSA could only be used in Zambia to the extent to which only the parties to the agreement are affected. J27 7 .8 The Appellants' contention is that the 1st and 2 nd Respondents are estopped from denying their own document. We agree with counsel for the Respondents that the doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of public policy, enacted to be invalid. We are also guided by the holding of the Supreme Court in the case of Champ Health Solutions v. Mopani Copper Mines Pie and Another 20. The 1st and 2nd Respondents are not party to the SSA and neither are they signatories. The principle of estoppel cannot be invoked against them. 7.9 We are also of the considered view that there is insufficient evidence on record to warrant a finding that Bharti International (Netherlands) BV and the 1st Respondent be considered as a single economic entity. The circumstances in the King Farm Products 1 case and the ZCCM v Kangwa 2 case supra cited by the Appellants, are quite different from those in casu, where no nexus in operations and decision making was established. The bar for pushing aside the principle of corporate personality is quite high and the Appellants have not provided any material to support such a hefty decision. The trial judge J28 was therefore on firm ground when she held that none of the parties to this action were parties to the SSA. 7.10 The purpose for the SSA has been set out to us by the 1st and 2 nd Respondents. That it was to acquire the whole of the share capital of Zain Africa BV. That act is valid. However, tallowing the holding of the Supreme Court in the Lumus case, our decision is that on account of non-compliance with the Authentication of Documents Act, the SSA could not be used for any purpose at all in this jurisdiction. 7.11 According to the Appellants, the SSA was central in the decision making process to arrive at the offer price to the minority shareholders and disallowing it will be manifestly unfair to the minority shareholders. Our view on this issue is that the record shows that consultants were engaged by both parties with regard to the share value offered to the minority shareholders. See report by Grant Thornton Associates Limited engaged by the 2nd Respondent at p. 316 of the record of appeal and the Valuation Report by Ian Given Ncube (engaged by the Appellants), to review and report on the valuation of the Celtel J29 Zambia minority interests). In our view determining the fair value of the shares was therefore not wholly dependent on the SSA. 7 .12 With regard tu Lhe SSA having been used to satisfy statutory requirements with the 3 rd Respondenl, lhe question as to whether statutory requirements were met and the consequences if they were not, is a question to be settled at trial. 7.13 The court below took a narrow view when it simply held that the document was not authenticated. She should have gone further to examine the effects of unauthenticated documents here in Zambia. The question of production does not even arise in this regard. 7 .14 Knowing full well of the possible ramification of holding as we have, we are guided and agree with the Supreme Court's opinion in the case of Steak Ranches International BV 6 case, that the Authentication of Documents Act needs urgent revision as it is archaic and maintaining it in its current form will continue to cause significant problems in implementing J30 and enforcing transactions which rely on the use of documents executed outside this jurisdiction. 7.15 In conclusion, we find no merit in the appeal and it fails. 7.16 The matter is sent back to the same Judge for trial. 7 .1 7 Costs for the Respondents, to be taxed in default. ••••.....................••.•••••.••••..•. M. M. KONDOLO,SC COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE ~ ....... -A.rrtt: ................... . A. M. BANDA-BOBO COURT OF APPEAL JUDGE J31